Author: SCwpadmin

by SCwpadmin SCwpadmin 306 Comments

The Immigration Policy Center (IPC) Recently Released a Special Report about Immigration and Its Effect on the American Economy

The Immigration Policy Center released a report titled “Rebooting the American Dream; the Role of Immigration in a 21st Century Economy.” This report discusses the current problems with our immigration system and also well documents the positive impacts both employment based immigration and family based immigration have on the American economy. Regarding the need to fix our current immigration system, the report is particularly enlightening. Significant changes to our immigration system have not been made since 1990 when the immigration act of 1990 create the five tiered employment based immigration system and also instilled the current numerical limits. The entire immigration system has not been overhauled since 1965. The fact that no significant changes have been made since 1990 is particularly concerning considering the drastic economic changes to our economy since that time. From the high tech bubble that began in 1999 to the deep recession we currently find ourselves in, it is striking that our immigration system has not addressed these changes. Our current employment based immigration system allows for 140,000 immigrants annually. Included within this number are the immigrant’s eligible spouses and minor children. Consequently the actual number of workers receiving green cards is much lower than 140,000. Because of numerical limitations, many foreign workers have to wait up to ten years or more before receiving their green card. More than one million high skilled immigrants are currently awaiting employment based green cards. Currently, demand for highly skilled workers not only outstrips the supply of employment based immigrant visas, but the current broken system makes it very difficult for skilled workers to immigrate to this country. These problems are resulting in many skilled immigrants evaluating new options for their long term residences. Many countries are also changing their own immigration laws so that they can more effectively compete with other countries with attracting the most highly skilled workers throughout the globe. Countries such as China and India which have historically produced some of the highest numbers of skilled immigrant workers, are now much more actively putting into place domestic policies to retain their talented citizens. These new policies have resulted in an increased number of Chinese and Indian nationals who have studied in the U.S. returning to their home countries. This has also resulted in greater retention of these highly skilled workers in the first place. In a recent study where many foreign students were interviewed at American universities, only 6% of Indians and 10% of Chinese students said they plan to remain in the U.S. Three quarters of these students said they feared they would not receive longer term visas. Resultantly, the U.S. is experiencing a brain drain of talented foreign skilled workers for the first time in our history. Talented immigrants are also returning to their home countries in greater numbers to found companies there, when historically many of these immigrants chose to found their new companies in the United States. Research has revealed that the broken immigrating system is part of the reason many of these workers are returning home for their entrepreneurial pursuits.

The report also clearly discusses the positive effect immigrant labor has on the U.S. economy. U.S. cities with higher immigration rates have experienced greater economic growth than those cities without high immigration rates. From 1990 to 2006, Phoenix, Dallas, and Houston experienced the fastest growth of immigrant labor in their workforce and these cities also had above average economic growth. In contrast, the slowest growing U.S. cities, Cleveland, Pittsburgh, and Detroit, had the smallest increases in immigrant labor. It is also a proven fact that most immigrant labor compliments the U.S. workforce rather than replaces U.S. workers. Immigrant labor is concentrated on the two ends of our workforce spectrum. These workers tend to fill positions at the bottom of the educational skill or at the top of the educational skill while in contrast Americans tend to fall somewhere in the middle. By complimenting and filling the gaps in the U.S. labor workforce, immigrant labor spurs economic growth. In the high tech and scientific fields, immigrant labor is playing a particularly important role. A December 2008 study released by the Harvard business school showed that 50% of scientists and engineers with doctorate degrees are immigrants and they account for a 67%increase in the United States science and engineering workforce between 19995 and 2006. The report also shows that immigrant labor has a net positive effect on wages of U.S. born workers and that the H-1B program results in job growth for all workers in the American economy. According to a report by the National Foundation of American Policy, for every one H-1B position requested, U.S. technology companies are employing five more workers in the following year. Consequently, the ability to hire temporary skilled workers through the H-1B program allows spurs overall job growth for U.S. companies.

The report also highlights a very important role of immigrant labor. Because of the aging baby boom population, there will an insufficient amount of U.S. workers to replace this aging population. If this shortfall is not addressed by foreign workers, there will be a fiscal crisis both with social security and Medicare. Consequently, an immigrant workforce is critical in addressing our labor shortfall that will result with the aging of the baby boomers. To understand the scope of this problem, between 2010 and 2030 the ratio of seniors “65 and up” to working age adults “25 to 64” will soar by 67%.

The report also highlights how important immigrant workers are to innovation and entrepreneurship. A June 2011 report from the partnership for a new American economy found that more than 40% of the 2010 fortune 500 companies were founded by immigrants or children of immigrants. Various reports show that immigrants are far more likely to found successful companies than U.S. born workers. This is particularly true in the high tech industries. The report also shows that immigrants are three times more likely to file patents in the U.S. than U.S. born citizens. This is the result of a disproportionally higher percentage of foreign degree holders in science and engineering than U.S. degree holders. To review the report in its entirety, go to the link below:
http://www.immigrationpolicy.org/special-reports/rebooting-american-dream-role-immigration-21st-century-economy

by SCwpadmin SCwpadmin 692 Comments

The Effect of Alabama’s Immigration Law on the State’s Farms

Alabama immigration law H.B. 56 is serving the purpose of the lawmakers’ intent—driving many of the state’s estimated 120,000 undocumented immigrants to pack up and head out of the state. The result is that many farms are left without the labor necessary to harvest the crops.

A substantial portion of farm workers there, as in other states, are undocumented. Alabama lawmakers who support the law insist that, by driving undocumented workers out, they will open jobs for Americans; the unemployment rate in the state is nearly 10 percent. But farmers say that jobless U.S. workers, mostly inexperienced in field work and concentrated in and around cities, are mostly unwilling to do the work required to plant and harvest tomatoes, squash, cucumbers and other crops. Farmers also say that, if they were to raise wages to make the jobs more attractive, as advocates for the new law suggest, crop prices would soar, making Alabama produce uncompetitive.

Many farmers state that if the immigration law is going to stand, legislators need to come up with solutions to prevent local agribusiness from going under. The debate is also raging in neighboring Georgia where the Georgia Department of Agriculture reports that this year’s harvest was short 11,000 workers, which farming advocates say was the result of immigrants leaving the state.

The uproar over the effect of these immigration laws on farms has exposed the nation’s hypocrisy over “unskilled” immigrants, whose legal entry into the country is blocked in most cases even though their labor remains much in demand. Congress and the federal government have simply failed to establish an adequate supply of visas for the immigrant labor drawn to the United States by the jobs. Some lawmakers, including Rep. Lamar Smith (R-Tex.), are suggesting the creation of a guest-worker program to recruit sufficient numbers of farm hands and other “unskilled” workers. In talking with the Birmingham News, Alabama state Rep. Jeremy Oden (R) said one solution was a temporary-worker program that would allow workers from outside the US to work here seasonally. Others say that the workers required are already in the United States and a more logical solution would be to allow them to legalize their status and provide a path for citizenship with various proposed requirements.

by SCwpadmin SCwpadmin No Comments

USCIS Original Receipt Notices Update

USCIS announced October 20, 2011 that it will resume sending original receipt notices to the Attorney of Record. Recently, USCIS had changed its policy and had begun to send original receipt notices to the petitioner, which in most cases is the employer. This has caused a great deal of confusion and extra work for employers, so the return to the prior system is quite welcome.

by SCwpadmin SCwpadmin 63 Comments

H-1B Cap Update

USCIS has reported that the H-1B master’s Cap has been reached. Therefore, employers petitioning for employees who have an advanced degree from an American university or college will now have their H-1B petitions counted against regular H-1B Cap. There are 65,000 available H-1Bs in the regular Cap. As of October 25, USCIS had receipted 46,200 petitions against the regular Cap.

by SCwpadmin SCwpadmin 31 Comments

Deportations Increase in 2011 Despite Prosecutorial Discretion Memo

Immigration and Customs Enforcement (ICE) reported that 396,906 individuals were removed from the U.S. in Fiscal Year 2011, the largest number in the agency’s history. What do these numbers mean? The administration prioritized certain areas, including the removal of individuals who have broken criminal laws, threats to national security, repeat violators of immigration law, recent border crossers, and immigration court fugitives. However, according to the American Immigration Lawyers Association (AILA), about 45% of the individuals removed had committed only civil immigration offenses. The other 55% were convicted of felonies or misdemeanors, with many of the misdemeanors being minor violations created specifically to convert civil immigration violators into misdemeanor criminals. A June 2011 Memo from ICE Director John Morton encourages those enforcing immigration laws to use their discretion in deciding the types of individuals who should be removed from the U.S. The factors that would deem an immigration case a low priority include good behavior, schooling, ties to America, and economic contributions. According to Eleanor Pelta, AILA’s president, “Unfortunately, Morton’s June guidance is for the most part going unimplemented in the field … Instead of spending money and time removing low-enforcement individuals from the country, ICE is supposed to be going after the really bad guys who could do us harm … ICE still has a long way to go.”

by SCwpadmin SCwpadmin 76 Comments

New Opportunities for Immigration Visas for Entrepreneurs

Gridlock in Congress has prevented the passage of new immigration visa opportunities for entrepreneurs, including the “start-up” visa program. On August 2, 2011, the Secretary of Homeland Security and the Director of USCIS announced a series of initiatives to make current immigration law more responsive to the needs of entrepreneurs. This initiative creates some interesting new approaches for obtaining nonimmigrant and immigrant visas for entrepreneurs and the talented professionals who they need to be successful in their enterprises.

Our firm is developing strategies for using this new initiative, in conjunction with existing immigration rules and regulations, to create a platform for obtaining appropriate visas for foreign-born entrepreneurs and the talented foreign-born individuals they seek to hire.

Please contact our firm for further information.

by SCwpadmin SCwpadmin 84 Comments

U.S. Consulate General, Mumbai Resumes Interviews for H and L Visas

In March, 2011 the U.S. Consulate General in Mumbai announced a partial reduction in its visa operations. The Consulate suspended all new H and L visa appointments, directing applicants to other U.S. Consulates in India and the Embassy in New Delhi. This moratorium was attributed to the consulate building’s aging infrastructure; the Consulate was forced to shut down several interview windows, largely limiting its visa processing capacities. The Consulate recently reported that it had resumed interviews for new H and L visas. The first interview appointments were scheduled for September 6, 2011. Given that 65 percent of H-1B visas are issued to Indian applicants, this news will positively affect thousands of Indian nationals.

by SCwpadmin SCwpadmin 87 Comments

September 8th Hearing on the American Specialty Agricultural Act (ASAA)

The house judiciary subcommittee on immigration enforcement will be holding a hearing on Thursday, September 8th on the American Specialty Agricultural Act (ASAA). The Act would eliminate the problems plaguing the H-2A program and institute a new visa category and program titled the H2-C program. The ASAA hopes to rectify the problems with the current H2-A visa program that have resulted in the majority of agricultural growers avoiding the use of the H2-A program altogether. The H-2C program contained in the ASAA would be distinct from the H-2A program in the following ways:

• Rather than the Department of Labor, the Department of Agriculture would administer the H2-C program. Historically, many agricultural growers agreed with the assessment of economist James Holt that there is “a culture of hostility toward the H2-A program and program users within the Department of Labor”. By replacing the Department of Labor with the Department of Agriculture as the H-2C program administrator, this culture of hostility would hopefully be eliminated.

• While the H2-A program originally included an attestation based process, this process was rescinded by the Obama administration. The H2-C program will return to an attestation based process. This process will reduce the necessary paperwork to hire a H2-C worker because an employer can attest to compliance with the program requirements rather than filing numerous forms with the Department of Agriculture.

• The H2-A program has an adverse effect wage rate formula for calculating the wages for H-2A workers. This formula often resulted in wages that were too high for employers to be competitive with other growers who were employing illegal immigrants. The ASAA eliminates the adverse effect wage rate formula and instead requires H2-C employers to pay the occupational prevailing wage in their locality, which is the same requirement for other temporary worker visa programs.

• The H2-A program requires employers to provide their guest workers with free housing. The ASAA allows growers to provide either housing or a housing voucher payable to a landlord. Consequently employers are no longer charged with the expense of providing free housing for their guest workers.

• The H2-A program, despite clear statutory language indicating otherwise, requires employers to pay transportation costs for all guest workers once they begin their employment in the U.S. if they decide to leave their employment at any time. This rule was instilled by the eleventh circuit in their decision in Arriaga vs. Florida Pacific Farms, LLC. The ASAA rejects the Arriaga opinion and rule and only requires an H2-C employer to pay for the transportation costs for their workers if the worker completes 50% of the work contract.

• Under the H2-A program, the 50% rule requires employers to provide employment to U.S. workers who apply for employment until H2-A workers have completed 50% of their work contract. The purpose of this rule was to ensure that U.S. workers who desired agricultural work were not displaced by H2 workers. However, this rule has had an adverse effect on the growers business because they are typically required to employ both U.S. and H2-A workers to ensure that they have a sufficient agricultural workforce in the event that U.S. worker decide to leave before the end of the agricultural period. The ASAA completely eliminates the 50% rule.

• Under the H2-A program, H2-A employers are required to guarantee employment for H2-A workers for at least three-fourths of the days covered by their employment contracts. The ASAA reduces this guarantee for the H2-C program to a more reasonable 50% of the workdays for the employment period.

• Dairies and other agricultural producers have not used the H2-A program because they employed their workers on a year round basis rather than on a seasonal basis, and the H2-A program is only available for temporary or seasonal work. The ASAA eliminates the requirement that such visas are only available for temporary or seasonal workers. Consequently, agricultural producers and dairies will be able to take advantage of the H2-C program because they will be allowed to employ full time, non-seasonal employees.

• Under the H2-A program, the efficacy of the program and the cost of the program to employers was frequently undermined by litigation. The ASAA hopes to reduce frivolous litigation by allowing growers to include binding arbitration and mediation clauses in their contracts with H2C workers. Furthermore, the ASAA provides that the federally funded Legal Services Corporation (LSC) may not sue an H2-C employer on behalf of H2-C workers unless mediation has been attempted through the federal mediation and conciliation service.

• Temporary agricultural visa programs have been criticized based on the assertion that temporary agricultural workers are anything but temporary, but rather stay in the U.S. illegally following their period of temporary employment. To address this concern, the ASAA does the following. First, the H2-C program does not allow temporary workers in the U.S. to bring their families with them during their periods of employment. The rationale behind this rule is that a person’s family is their strongest tie to their place of residence. Second, the bill requires that H2-C workers return home after ten months of work. Third, all H2-C employers are required to promptly alert the Department of Homeland Security if a worker has been fired or voluntarily left their employment.

• The H2-C program allows up to half a million foreign workers a year to receive H2-C visas. Based on statistics from the University of California at Davis and the Department of Labor, this allocation of temporary agricultural visas is projected to cover the needs of agricultural growers and producers.

Please check back with the Stern & Curray news blog to find out what new developments arise from the September 8th hearing on the ASAA and the proposed H-2C program.

by SCwpadmin SCwpadmin 288 Comments

Department of Homeland Security Releases New Guidance on the Exercise of Prosecutorial Discretion in Low-Priority Immigration Cases

On June 17, 2011, John Morton, Director of U.S. Immigration and Customs Enforcement (ICE), released a memo setting forth the policy regarding the exercise of prosecutorial discretion by certain agency employees. This policy gives certain ICE agents the discretion to decide to what degree they will enforce immigration laws against a particular individual.

Prosecutorial discretion will be implemented in furtherance of the enforcement priorities of ICE, as set forth in a March 2, 2011 memo entitled “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens”.

According to this new directive, ICE will prioritize the use of its enforcement personnel, detention space, and removal resources to pursue the removal of aliens who pose a threat to national security, public safety, or the integrity of U.S. immigration laws. ICE officers, agents, and attorneys may consider any relevant factors in deciding whether to grant favorable discretion, including but not limited to: length of presence in the U.S., family ties and contributions to the community, physical or mental illness, serious medical conditions, criminal history, pursuit of education in the U.S., immigration history, and risk to national security or public safety. When considering an exercise of favorable discretion, ICE agents, officers, and attorneys are to base their decision on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.

ICE also specified certain categories of undocumented aliens that should prompt special care and consideration in the exercise of discretion. Examples of these categories include: Veterans and members of the U.S. Armed Forces, long-time lawful permanent residents, minors and elderly individuals, pregnant women, and victims of domestic violence or other serious crimes.

In an effort to further this enforcement policy, an interagency working group composed of ICE and Department of Justice staff will execute a case-by-case review of all individuals currently in removal proceedings to ensure that they meet ICE removal priorities. The group will monitor new cases as well, to ensure that cases continue to meet these priorities.

While those in removal proceedings or their counsel may request a review of their case for prosecutorial discretion, it is unclear at this time whether those requests will be granted before the case-by-case review by the interagency group is completed. Additionally, ICE attorneys are encouraged to consider using their discretion without waiting for a request from those in proceedings or from counsel.

While the exercise of prosecutorial discretion is not a right, and does not provide categorical relief for any particular group of aliens, it is a step in the direction of recognizing inconsistency in the current enforcement of U.S. immigration laws, and in allowing productive members of the undocumented community to avoid lengthy detentions and removal to countries they no longer call home.

by SCwpadmin SCwpadmin 27 Comments

USCIS Creates New Initiative to Support Entrepreneurs

On August 2, 2011 the Secretary of the Department of Homeland Security and the USCIS Director held a press conference and announced a new initiative to promote start-up enterprises and to spur job creation in the United States.

Entrepreneurs, leaders in the venture capital world, and immigration lawyers have long complained about the negative impact of immigration rules and regulations on the ability of entrepreneurs to create start-up enterprises in the United States which will help the economy and lead to new jobs. It appears that Secretary Napolitano and Director Mayorkas now recognize this problem and are taking steps to create a more hospitable environment for entrepreneurs in the United States.

While many initiatives lack specificity, or do not make substantial structural changes, we hope that this initiative will change the attitude of USCIS adjudicators and make them view applications from entrepreneurs in a more favorable light.

The one very interesting new proposal is the possibility that entrepreneurs may be able to obtain permanent resident status based upon the national interest waiver process. Our firm has extensive experience in processing and filing NIW applications and we look forward to working with entrepreneurs who seek permanent residence status through this new approach.

Time will tell whether there is any substance to this new initiative. We hope that USCIS will take this initiative seriously in order to support entrepreneurs who want to create new businesses in the United States.

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